"The Supreme Court Just Blew A Gaping Hole In The Wall Of Separation Between Church And State"

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Town of Greece v. Galloway is the case that proponents of the separation of church and state have feared every since Justice Sandra Day O’Connor left the Supreme Court in 2006. It strikes at the heart of the constitutional prohibition on government endorsement of religious doctrine or belief. And it brings religious conservatives within inches of a victory they have sought for more than two decades. For the sort of people who believe America should be a “Christian nation,” today is a today to celebrate.

To explain, Justice O’Connor was the Court’s leading supporter of the view that government may not endorse a particular religious belief or take any action that could convey such a “message of endorsement to the reasonable observer.” This view placed her sharply at odds with the four other conservatives on the Rehnquist Court. Thus, when O’Connor was replaced with the much more conservative Justice Samuel Alito, most Court watchers expected this prohibition on government endorsements of religion to fall in short order. The most surprising thing about the Town of Greece decision isn’t that begins the process of doing so — it is that it took the Roberts Court this long to reach such a decision.

Though Justice Anthony Kennedy’s opinion in Town of Greece does not explicitly eliminate the ban on government endorsements of religion, it strongly suggests that the end of this ban is nigh. As Kennedy explains, this ban derives from a case called County of Allegheny v. ACLU, which “held that a crèche placed on the steps of a county courthouse to celebrate the Christmas season violated the Establish­ment Clause because it had ‘the effect of endorsing a patently Christian message.’” Four dissenters, according to Kennedy, “disputed that endorsement could be the proper test, as it likely would condemn a host of traditional practices that recognize the role religion plays in our society.” One of those dissenters was Kennedy.

Town of Greece is a case about legislative prayer — that is, it is about whether lawmaking bodies can open their session with a prayer that is often, if not always, explicitly Christian. On the surface, Kennedy limits his treatment of the ban on government endorsements of religion to the context of legislative prayer, writing that there was no suggestion in a key precedent “that the constitutionality of legislative prayer turns on the neutrality of its content.” That key precedent is a case known as Marsh v. Chambers, which gave legislative prayers special immunity from the Constitution’s ban on establishments of religion.

Given the fact that legislative prayer already enjoyed special constitutional status even before Town of Greece, supporters of a robust separation of church and state are likely to argue that the ban on government endorsements of religion still exists outside of the context of legislative prayer. They are unlikely to succeed, however, in the long run. There may have been four justices who opposed that ban when County of Allegheny was decided. But there are almost certainly five right now.

The later part of Kennedy’s opinion, which is joined only by Chief Justice John Roberts and Justice Alito, focuses on a weaker limit on government efforts to advance religious faith that Kennedy has supported in the past. Twenty-two years ago, Kennedy wrote for the Court that “government may not coerce anyone to support or participate in religion or its exercise.” He reiterates that holding today, but he adds that the legislative prayer at issue in this case does not constitute religious coercion. “The analysis would be different if town board members directed the public to participate in the prayers,” Kennedy writes, or if they “singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.” Similarly, “[a] practice that classified citizens based on their religious views would violate the Constitution, but that is not the case before this Court.”

This final portion of Kennedy’s analysis is joined by just three justices because Justice Antonin Scalia joins an opinion by Justice Clarence Thomas calling for the Court to go even further. To Scalia and Thomas, the only kind of religious coercion banned by the Constitution is “coercion of religious orthodoxy and of financial support by force of law and threat of penalty” (emphasis in original). So unless the government threatens to jail or fine you for failing to pray, lawmakers can more or less do whatever they want. (Indeed, Thomas would go even further than that. In a section of his opinion that Scalia declines to join, Thomas writes that the “Establishment Clause is ‘best understood as a federalism provision.'” This means that Thomas believes that the separation of church and state applies to the federal government only.)

The upshot of today’s opinion is that Kennedy and his fellow conservatives have finally begun a project they were expected to begin the day O’Connor retired. By the time this project finishes, it is unlikely that many limits will remain on overt government endorsements of religious faith.

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